Pane v. Com., Dept. of Highways
| Decision Date | 27 September 1966 |
| Citation | 222 A.2d 913,422 Pa. 489 |
| Parties | Philip P. PANE and Mary Pane, his wife v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF HIGHWAYS, Appellant. |
| Court | Pennsylvania Supreme Court |
George R. Specter, Asst. Atty. Gen., Harrisburg for appellant.
Pasco L. Schiavo, Hazleton, for appellee.
Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN O'BRIEN and ROBERTS, JJ.
This appeal presents an interesting question: is the Commonwealth of Pennsylvania, in the absence of an actual 'taking' of property, liable for consequential damages where a plan for the widening and change of grade of a highway was duly filed prior to the passage of the Eminent Domain Code of 1964, [1] (the Code), but where the actual widening of said highway and the change of grade,--as the result of which a property abutting the highway sustained damages--was not undertaken until after the effective date of the Code?
For approximately 18 years, Philip Pane and Mary Pane, his wife, have been the owners of property--279 feet along the highway and 380 feet in depth--which abuts upon Route 29 [2] in Sugarloaf Township, Luzerne County. On July 10, 1963, the Commonwealth of Pennsylvania, acting through its Department of Highways and in accordance with a plan signed by the Governor, authorized the widening and change of grade of Route 29. [3] Under this plan, the highway was to be widened from a two-lane to a four-lane highway and, at the point where Panes' property abuts the highway, the grade of the highway was to be raised eight to ten feet. No portion of Panes' property was to be 'taken' under this plan. Actual construction of the highway, with the resultant widening and change of grade, was not undertaken until the early part of 1963, approximately six months subsequent to the effective date of the Code.
On August 10, 1964, Panes, claiming that the widening of the highway and the change of grade had caused an 'injury' resulting in damage to their abutting property, [4] petitioned the Court of Common Pleas of Luzerne County for the appointment of a board of viewers and a board of viewers was appointed. On November 10, 1965, the board of viewers, after a hearing, awarded $10,000 damages to Panes. From that award the Commonwealth appealed and the Court of Common Pleas of Luzerne County affirmed the award of the board of viewers. From that order this appeal has been taken.
Before the board of viewers and in the court below the Commonwealth maintained that, since there was no actual 'taking' of Panes' property and since the damages claimed were consequential in nature, Panes had no cause of action because the Code--which for the first time permitted the recovery against the Commonwealth of consequential damages [5] in the absence of a 'taking' of property--was not applicable to the present proceeding. The Commonwealth's position is based squarely upon its construction of the language of the Code.
Prior to the passage of the Code, the Commonwealth was not liable for damages arising from the exercise of its power of eminent domain unless there had been an actual 'taking' of property: Anderson Appeal, 408 Pa. 179, 181, 182 A.2d 514; McCrady Case, 399 Pa. 586, 592, 160 A.2d 715. In Anderson Appeal, supra, we said: (408 Pa. at p. 181, 182 A.2d at p. 515). The legislature, by the enactment of Section 612 of the Code, has now supplied the legislative deficiency pointed out in Anderson Appeal, supra; Section 612 expressly imposes liability on the Commonwealth for certain damages to abutting property [6] even though there has not been an actual 'taking.' Section 612 provides: The issue which this appeal presents is whether Section 612 is applicable to the present proceeding.
The Code provides (art. III, § 302.26 P.S. § 1--302) that: The Code was approved by the Governor on June 22, 1964.
It is evident, by reason of the language of Section 302, supra, that the responsibility of the Commonwealth for 'consequential damages' under Section 612 is limited to condemnations which were effected After June 22, 1964. The legislature has clearly stated that All the Articles in the Code, except Article IV, should become effective as of the date of approval of the legislation, to wit, June 22, 1964, And apply to all condemnations effected thereafter, and that Article IV should become effective September 1, 1964; moreover, that, as of September 1, 1964, all the Articles would be in effect and would apply to all condemnations effected thereafter. The legislature then Specifically provided that two Articles of the Code--Articles V and VII--should be retroactive and should apply to condemnations effected prior to June 22, 1964, but made no mention of any retroactive effect to be accorded Article VI wherein is contained the provision for 'consequential damages.'
In determining whether Article VI, of which Section 612 is a part, should be applied retroactively we must bear in mind certain well settled principles of statutory and case law: (a) 'No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature': Statutory Construction Act, Act of May 28, 1937, P.L. 1019, art. IV, § 56, 46 P.S. § 556; Commonwealth v. Scoleri, 399 Pa. 110, 132, 133, 160 A.2d 215, cert. den'd 364 U.S. 849, 81 S.Ct. 93, 5 L.Ed.2d 72; Creighan v. City of Pittsburgh, 389 Pa. 569, 574, 132 A.2d 867; (b) 'When the words of a law are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit': Statutory Construction Act, supra, art. IV, § 51, 46 P.S. § 551; Commonwealth v. Rieck Investment Corporation, 419 Pa. 52, 59, 213 A.2d 277; Davis v. Sulcowe, 416 Pa. 138, 143, 205 A.2d 89; (c) the mention of a specific matter in a general statute implies the exclusion of others not mentioned: Cali v. City of Philadelphia, 406 Pa. 290, 305, 177 A.2d 824 and authorizes therein cited. Applying these principles to the instant situation, Section 302 of the Code reveals no intent on the part of the legislature to render retroactive any portion of the Code save Articles V and VII; the words of the Code are clear and free from ambiguity; the specific language of the enactment which renders Articles V and VII specifically retroactive but makes no mention of any other Article being retroactive would imply that Article VI was not intended to be retroactive.
In our view, under the unequivocal language of Section 302, Article VI, which includes Section 612, was not intended to be retroactive so as to encompass Condemnations effected prior to the effective date of the Code. [*] Were this all that was involved in the case at bar we would have no hesitancy in determining that Section 612 was inapplicable in the instant proceeding.
In the case at bar, the Commonwealth in 1963 filed a Governor-approved plan which authorized the widening and change of grade of Route 29. This plan was properly filed and recorded, under the provisions of the Act of June 1, 1945, P.L. 1242, art. II, § 210, as amended, 36 P.S. § 670--210. The recording of this plan constituted constructive notice to the property owners although the record undisputedly indicates that the property owners received no actual notice until actual construction of the highway took place almost a year after the plan was recorded.
The real crux of this controversy is whether, under Section 302 of the Code, a Condemnation had been Effected prior to the effective date of this Code insofar as Panes' property is concerned. Stated otherwise, was Panes' property 'condemned' when the Commonwealth filed its plan on July 10, 1963, or when the physical work began on the highway in 1965?
We must initiate our inquiry by seeking to ascertain what the legislature meant in Section 302 by the phrase 'condemnations effected'. Section 201(1), which defines the word 'condemn' as meaning 'to take, injure or destroy private property by authority of law for a public purpose', makes clear that a 'condemnation' is the act of taking, injuring or destroying private property by authority of law for a public purpose.
Prior to the Code, Where there was an actual 'taking' of property a condemnation was Effected when the right-of-way plans or construction drawings, prepared by the Department of Highways and approved by the Secretary of Highways and the Governor, was filed as a public record in the office of the Department of Highways: Act of June 1, 1945, P.L. 1242, art. II, § 208, 36 P.S. § 670--208; Department of Property and Supplies v. Rhoads, 378 Pa. 603, 607, 107 A.2d 868; Smith v. Commonwealth, 351 Pa. 68, 40 A.2d 383. Under the Code, a condemnation which involves the 'taking' of property is 'effected only by...
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